38. We have already reported our preliminary views
on the Communications Bill, and drawn attention to the questions
raised with the Government about its human rights implications.[34]
We received a memorandum from the Department of 22 November 2002
dealing with the human rights implications of the Bill.[35]
We also received a copy of a letter, dated 10 December 2002, sent
by the Secretary of State for Culture, Media and Sport, to Mr.
Derek Wyatt MP in response to a question about the ban on political
advertising on television and radio. Attached to this letter was
an explanatory note by the Department of Culture, Media and Sport
on the matter.[36] The
Government responded on 9 January 2003 by way of a letter sent
jointly by the Secretary of State for Culture, Media and Sport,
and the Minister of State for e-Commerce and Competitiveness,
Mr. Stephen Timms MP.[37]
We now report on our further consideration of the Bill in the
light of that correspondence.

39. We raised five matters in particular with the
Government, namely

a request for fuller reasons for the decision
to include in the Bill a continuation of the prohibition of political
advertising on radio and television, despite being unable to state
(under section 19 of the Human Rights Act 1998) that the Minister
was satisfied that it would be compatible with Convention rights;

a perceived weakness on protection for the privilege
against self-incrimination and for items subject to legal professional
privilege in the Bill;

the adequacy of procedural safeguards for broadcasters
against fines or the revocation or suspension of licences;

the compatibility with Convention rights of the
power of a Minister to direct a broadcaster, via OFCOM, to include
announcements in their services; and

the compatibility with ECHR Article 10 of restrictions
on the right of religious bodies to hold licences to broadcast.

40. In our First Report,[38]
we set out six factors which we provisionally thought were relevant
to an assessment by Parliament of the propriety of proceeding
to legislate in a way that would give rise to an acknowledged
risk of incompatibility with a Convention right. Taking those
matters into account, and in the light of the correspondence mentioned
above,[39] we are satisfied
that

in any litigation about the ban on political
advertising and sponsorship in the broadcast media under clause
309 of the Bill, the Government would argue that the decision
in Vgt Verein Gegeng Tierfabriken v. Switzerland should
not be followed, or alternatively that the decision does not necessarily
entail the incompatibility of clause 309 with the right to freedom
of expression under ECHR Article 10, and that such an argument
would have a reasonable chance of success;

the Government would feel obliged to amend the
law if that particular provision were held by the European Court
of Human Rights, after argument, to be incompatible with Article
10, and would consider its position if a court in the United Kingdom
were to make a declaration of incompatibility under section 4
of the Human Rights Act 1998; and

in the meantime, pending the opportunity to advance
before the courts its arguments relating to the compatibility
of a ban with Article 10, the Government has good reasons for
believing that the policy reasons for maintaining the ban outweigh
the reasons for restricting it, particularly as it would be difficult
to produce a workable compromise solution.

41. We are satisfied that the course of action
taken by the Government in introducing the Communications Bill
with a statement under section 19(1)(b) of the Human Rights Act
1998, rather than a statement of compatibility under section 19(1)(a),
does not evince a lack of respect for human rights, and is legitimate
in the circumstances.

42. However, we record our disagreement with the
suggestion in the letter of 9 January that it is inappropriate
to include in the Explanatory Notes to Bills anything that could
be seen as justifying the Government's policy, rather than explaining
the provisions of the Bill. We think that an assessment of a Bill's
human rights implications has more in common with the regulatory
impact assessment which is routinely included in Explanatory Notes.
We draw attention once again to the guidance to Departments issued
by the Lord Chancellor's Department, and reiterate that in our
view it represents good practice.[40]

44. The Government's response is that it would be
confusing and superfluous to include on the face of the Bill protections
which would be co-extensive with the protection guaranteed by
the Human Rights Act 1998. We consider that it is good practice
to ensure that adequate procedural and other safeguards for human
rights are provided on the face of the legislation to which they
apply, in order that people may know with reasonable foreseeability
and accessibility the circumstances in which officials may interfere
with their rights lawfully. We have consistently taken the view
that, normally, it is not safe to rely on courts or administrators
to read protections into the legislation by applying the duty
to act compatibly and to read and give effect to legislation in
a compatible manner under sections 6 and 3 respectively of the
1998 Act. We draw this matter to the attention of each House.

46. This is equally true of the equivalent provision
in the Bill (clause 230). We therefore asked the Government to
explain why it considered that judicial review would provide sufficient
procedural safeguards to ensure that the standards of fair hearing
imposed by ECHR Article 6 would be met.

47. The Government's response is, essentially, (a)
that there is no reason to think that OFCOM will fail to provide
for an adequate procedure to safeguard the right to a fair hearing
under Article 6, and (b) that case-law supports the view that
appropriate internal procedures with the back-up of judicial review
are capable of meeting the requirements of Article 6.1. Particular
attention is drawn to: (i) the specialised nature of the broadcasting
field; (ii) the fact that broadcasting regulators rarely have
to determine questions of 'primary fact', that is questions of
fact which do not involves issues of judgment or law; and (iii)
the relatively high intensity of review used by courts in cases
where Convention rights are engaged.

48. We accept that these factors, so far as they
turn out to be applicable in these cases, might avoid a person
whose rights are threatened from being left without a remedy.
However, we regard the Department's argument as somewhat speculative,
particularly in relation to factor (ii) above (which will depend
on the circumstances of individual cases) and factor (iii) above
(in relation to which we merely observe that the case-law on this
is far from settled, and that we may expect a lower intensity
of review in fields within the specialised expertise of the primary
decision-maker: compare factor (i)). Furthermore, we are not satisfied
that the Bill as drafted gives adequate guidance to OFCOM to ensure
that adequate safeguards for Convention rights will be put in
place. We draw these matters to the attention of each House.

52. The Government has now explained that the opportunities
for local broadcasting are now more freely available, and has
pointed out that the Bill would also allow religious organisations
to hold both local and national digital radio licences, reflecting
the larger number of digital licences now available. As only three
national analogue radio licences are available, there remains
a need to ensure that the limited spectrum is used in a way that
satisfies as many listeners as possible and avoids unfair discrimination
between religions.[44]

53. We take the view that the Government's response
sufficiently indicates reasons for thinking that the position
adopted in clause 335 of the Bill is unlikely to lead to a violation
of rights under Article 10 of the ECHR, or Article 14 (non-discrimination)
taken together with Article 10. The regulation under clause 335
can legitimately be argued to serve a legitimate aim of protecting
the rights of others, to advance a pressing social need to ensure
that the television and radio spectra are used fairly and effectively,
and to go no further than necessary for that purpose. Any discrimination
between religious organisations can be legitimately argued to
be rationally and objectively justified, and proportionate to
a legitimate purpose, for the same reasons.